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A. Ishaque Alias Md. Ashfaque Chowdhury Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 524 of 1957
Judge
Reported inAIR1958Cal341,1958CriLJ881
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 156, 173, 207A and 207A(4)
AppellantA. Ishaque Alias Md. Ashfaque Chowdhury
RespondentThe State
Appellant AdvocateNalin Chandra Banerji and ;S.H. Imam, Advs.
Respondent AdvocateAjit Kumar Dutt, Adv.
Cases ReferredManik Chand v. State
Excerpt:
- .....ground that section 207 a did not apply at all to cases instituted on a report made by the calcutta police. all those grounds were urged with great elaboration. when the present rule was taken up, the learned advocate appearing for the petitioner prayed that he might be permitted to take the ground that the case having been instituted on a report made by the calcutta police, section 207 a was inapplicable to it. as the question was a pure question of law, the permission prayed for was given. the learned advocate then adopted the arguments advanced on behalf of the petitioners in criminal revision no. 1161 of 1956 : : air1958cal324 (b) without making any further submissions of his own.8. the facts of this case and those of criminal revn. no. 1161 of 1956 : : air1958cal324 (b) are.....
Judgment:

P. Chakravartti, C.J.

1. This is a Rule issued on the Chief Presidency Magistrate, Calcutta, requiring him to show cause why two orders, dated 30-4-1957 and 1-5-1957 respectively, passed by Shri F.M. Sanyal, Presidency Magistrate, in the course of a commitment proceeding against the petitioner should not be set aside or such other order or orders passed as this Court may deem fit and proper. By the impugned orders, the learned Magistrate rejected the Petitioner's prayer to direct the prosecution to produce more witnesses of the actual commission of the alleged offence and also to examine some witnesses on his own account in the interest of justice.

2. The case arose out of an incident which took place on 4-10-1956 and in the course ofWhich one Osman Kasai received severe injuries, resulting ultimately in his death. At first, the Police started a case against Osman Kasai and 5 others on an information lodged by one Matilal Marwari at about 1-50 P. M., but in the night two other informations were lodged by one Md. Farooque, a brother of Osman Kasai, accusing the Petitioner and certain other persons of an assault on Osman. Later in the same night, on receipt of the injury report of Osman from the Medical College Hospital and his statement made to the doctor in charge that he had been assaulted by unknown goondas, the Police started a case against unknown goondas under Section 325 of the Indian Penal Code and commenced investigation. Subsequently Osman died in the hospital.

3. On the completion of their investigation, the Police submitted a challan on 4-1-1957, charging the Petitioner and six other persons-with an offence under Section 302/34 of the Indian Penal Code for having assaulted Osman Kasai on 4-10-1956, in furtherance of a common intention to cause his death and for having caused his death by the assault. The Petitioner and five of the other accused persons had previously been arrested by the Police, but the seventh accused was absconding.

4. On 31-1-1957, the Chief Presidency Magistrate directed the case to proceed as against the six accused persons before the Court and transferred it to Shri F.M. Sanyal, Presidency Magistrate, for disposal.

5. Shri Sanyal proceeded under Section 207A of the Criminal Procedure. He satisfied himself that copies of the papers to which the accused were entitled had been supplied to them and then he examined the witnesses produced by the prosecution. In all, seven witnesses were, examined, the last of them on 1-5-1957. In the case of every witness, the defence declined to cross-examine.

6. On 30-4-1957, before which six of the witnesses had been examined, an application was made by the Petitioner whereby it was prayed that the prosecution might be directed to produce all witnesses on whom they wished to rely as eye-witnesses and also to produce the medical witnesses. The learned Magistrate rejected the application. He said that the prosecution were examining all the eye-witnesses of the occurrence and having perused the records and documents filed in the case, he did not think that any useful purpose would be served by examining all the other witnesses and prolonging the enquiry thereby. On 1-5-1957, a further application was made by the Petitioner in which he referred to two decisions one of the Madhya Bharat High Court and another of the Travancore-Cochin High Court, in support of his contention that both parts of Section 207A (4) were mandatory and by which he prayed that the learned Magistrate might either make a reference to this Court under Section 432 of the Code or grant an adjournment of the case so that he might move it himself for a decision of the question of law raised by him. That application was also rejected. The learned Magistrate observed that the question had already been decided by this Court in the State v. Joydeb Chandra Das, 61 Cal WN 248 (A). Thereafter, the Petitioner moved this Court and obtained the present Rule.

7. The petition to this Court by which a Rule was asked for is an extiemely cumbrous document, containing a confused and incomplete statement of facts and submissions of a rambling and argumentative character. But lengthy as the submissions were, by none of them was the applicability of section 207A questioned. The only grounds taken were that the prosecution were bound to examine all the eye-witnesses under the first part of Section 207A(4), that the learned Magistrate ought to have compelled them to do so, that he ought to have examined the remaining witnesses himself under the second part of the Sub-section and that in thinking that the prosecution were examining all the eye-witnesses, he had been completely mistaken. At the hearing of the Rule, a further ground was urged. This case had been directed to be heard along with Manik Chand v. State, Criminal Revn. No. 1161 of 1956: : AIR1958Cal324 (B) because, in both of these, questions relating to Section 207 A of the Code were involved . In Criminal Revn. No. 1161 of 1956: : AIR1958Cal324 (B) which was heard first, the Petitioners had taken not merely grounds as to the true construction of section 207 A (4), as taken in the present Rule, but also a fundamental ground that section 207 A did not apply at all to cases instituted on a report made by the Calcutta Police. All those grounds were urged with great elaboration. When the present Rule was taken up, the learned Advocate appearing for the Petitioner prayed that he might be permitted to take the ground that the case having been instituted on a report made by the Calcutta Police, Section 207 A was inapplicable to it. As the question was a pure question of law, the permission prayed for was given. The learned Advocate then adopted the arguments advanced on behalf of the Petitioners in Criminal Revision No. 1161 of 1956 : : AIR1958Cal324 (B) without making any further submissions of his own.

8. The facts of this case and those of Criminal Revn. No. 1161 of 1956 : : AIR1958Cal324 (B) are not wholly identical. In Criminal Revn. No. 1161 of 1956 : : AIR1958Cal324 (B) Sections 154, 161, 162, 163, 172 and 173 were extended to the Calcutta Police after the investigation had made considerable progress, whereas in the present case the whole of the investigation took place alter the extension of the sections. Also, the challan submitted in the present case purported to be a report under Section 173 and that section was specifically mentioned.

9. The above differences of fact, however, do not affect the legal position. The offence alleged in the present case is a cognizable offence, but Section 156 of the Code not having been extended to the Calcutta Police, their investigation of it could not be an investigation under Chapter XIV and the report made by them could not be| a report under Section 173, although certain specific sections of the Chapter, incluiding Section 173, had been extended before the investigation commenced. I have given in detail my reasons for taking that view in Criminal Revn. No. 1161 of 1956 : : AIR1958Cal324 (B) and do not wish to repeat them here. It looks as if in deciding to what extent the Code should be extended to the Calcutta Police, the State Government went by Sub-section (4) of Section 173 and extended just those sections under which the documents referred to in Section 173(4) could come into existence, except Section 164 wihich already applied to the Calcutta Police by its own language. They overlooked the fact that they were not extending the basic provisions contained In Sections 155(2) and 156 which only could authorise the Police to hold an investigation under Chapter XIV and without an extension of which the Calcutta Police could not possibly proceed under either Section 161 or Section 172 or Section 173, nor could Sections 162 and 163 apply to them, since all those sections required 'an investigation under this chapter', i.e. chapter XIV. As regard Section 164, that section, as amended in 1952, already spoke of 'an investigation under this Chapter or under any other law for the time being in force', so that it applied to investigations under the Calcutta Police Act.

10. For the reasons given in my judgment in Criminal Revn. No. 1161 of 1956 : : AIR1958Cal324 (B) delivered earlier today, I hold that Section 207A of the Code cannot apply to the present case. I also hold, for reasons given in the same judgment, that the first part of Section 207A(4) does not make it compulsory for the prosecution to produce all their witnesses of the actual commission of the offence, nor does the second part make it compulsory for the Magistrate to examine for himself all such witnesses of the actual commission of the offence as the prosecution have not produced or even any of the other witnesses. The Magistrate must, however, apply his mind to the question as to whether It Is necessary in the Interests of justice to examine for himself Some witnesses other than those, if any, whom the prosecution have examined, whether they be eye-witnesses or not, and in doing so, must exercise his discretion judicially. If he comes to be of the view that the facts are such that some more witnesses ought to be examined, he will be bound to examine them and cannot refuse to do so on extraneous considerations; and if he decides that it is not necessary to examine any or any more witnesses for himself, not by a lair and judicial exercise of his discretion but arbitrarily or perversely, he may be corrected by a superior court. Whether or not the Magistrate acted properly in the present case in refusing to examine any witnesses on his own account does not call for decision, since Section 207A does not apply to the proceedings at all.

11. In the result, the Rule is made absolute. The proceedings by way of an enquiry had in the case on and after 21-1-1957 are quashed, and the learned Magistrate is directed to proceed with the enquiry in accordance with law, i.e. in accordance with Section 208 and subsequent sections in Chapter XVIII of the Code.

K.C. Das Gupta, J.

12. I agree.


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